Seymour and Migration Agents Registration Authority
[2006] AATA 62
•27 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 62
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/216
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL SEYMOUR Applicant
And
MIGRATION AGENTS REGISTRATION AUTHORITY
Respondent
DECISION
Tribunal Senior Member M D Allen Date27 January 2006
PlaceSydney
Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that Michael Seymour is not a fit and proper person to be reregistered as a migration agent.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
MIGRATION AGENT – application to reregister – whether applicant not a person of integrity or otherwise not a fit and proper person to give immigration assistance – validity of decision under review – failure to disclose prior charges and convictions as required by the Migration Act 1958 in particular a conviction of contempt of court – discussion of the nature of contempt – decision under review set aside and Tribunal substitutes its own decision that the Applicant is not a fit and proper person to be reregistered as a migration agent.
Migration Act 1958 ss 290, 312
Davies v The Australian Securities Commission (1995) 131 ALR 295
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
Australian Securities and Investments Commission v Donald (2003) 136 FCR 7
Law Society of NSW v Seymour [1999] NSWCA 117
Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314
Witham v Holloway (1995) 183 CLR 525
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Limited (1986) 161 CLR 98
Microsoft Corporation & Microsoft Pty Ltd v Marks (1996) 69 FCR 117
Malindi v R [1967] AC 439
Stirland v Director of Public Prosecutions [1944] AC 315
Halsbury’s Laws of Australia Volume 5 – Contempt
REASONS FOR DECISION
Senior Member Allen 1. By application made 17 February 2005, Michael Seymour (“the Applicant”) sought review of a decision made on 14 February 2005 refusing to reregister him as a migration agent on the ground that he was not a person of integrity or otherwise not a fit and proper person to give immigration assistance.
2. That decision was made pursuant to s 290 of the Migration Act 1958 (as amended) (“the Act”). Section 290 reads inter alia:
(1)An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:
(a)the applicant is not a fit and proper person to give immigration assistance; or
(b)the applicant is not a person of integrity; or
(c)…
(2)In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:
(a)the extent of the applicant’s knowledge of migration procedure; and
(b)[repealed]
(c)any conviction of the applicant of a criminal offence relevant to the question whether the applicant is not:
(i) a fit and proper person to give immigration assistance; or
(ii) a person of integrity;
(except a conviction that is spent under Part VIIC of the Crimes Act 1914);
(d)any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and
(e)any enquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and
(f)any disciplinary action that is being taken, or has been taken, against the applicant that the Authority considers relevant to the application; and
(g)any bankruptcy (present or past) of the applicant; and
(h)any other matter relevant to the applicant’s fitness to give immigration assistance.
(3)…
(4)To avoid doubt, this section applies to all applicants (not just first time applicants).
3. The term ‘fit and proper person’ was explained by Hill J in Davies v Australian Securities Commission (1995) 131 ALR 295 at 305 as follows:
“The phrase fit and proper person is a familiar one in the context of qualifications for offices or vocations. Discussing the phrase in the context of licenses to use vehicles for the purposes of inter-State trade, Dixon CJ, McTiernan and Webb JJ said in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1995) 93 CLR 127 at 156-7:
But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office, is said to involve three things, honesty, knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ – Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances …
As I observed in Stasos v Tax Agents’ Board of NSW (1990) 90 ATC 4950 at 4959 the content of what is necessary to constitute a person a fit and proper person to occupy a particular office or pursue a particular vocation will vary having regard to the office or vocation under consideration. Thus the characteristics required to show fitness as a tax agent were expressed by Davies J in Re Su and Tax Agents’ Board of South Australia 1982 82 ATC 4284 at 4286 as requiring that person to be:
… a person of good reputation, has a proper knowledge of taxation laws, is able to prepare income tax returns competently and is able to deal competently with any queries which may be raised by officers of the Taxation Department. He should be a person of such competence and integrity that others may entrust their taxation affairs to his care. He should be a person of such reputation and ability that officers of the Taxation Department may proceed upon the footing that the taxation returns lodged by the agent have been prepared by him honestly and competently.”
4. Likewise in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380, Toohey and Gaudron JJ said:
“The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”
5. The specifics of the complaint against the Applicant were set out at paragraph 5 of the Respondent’s Statement of Facts and Contentions. Paragraph 5 reads:
5.That decision was supported by findings made in relation to the following four areas of conduct:
5.1The applicant’s conduct that led to his being sentenced to a term of imprisonment of nine months.
5.2The applicant’s conduct in declaring that he was not the subject of any criminal proceeding, when in fact he was.
5.3The applicant’s conduct in not disclosing a conviction in his 1993 registration application.
5.4The applicant’s conduct in not notifying the Authority that he had been convicted on an offence as required by s. 312(1)(e) of the Act.
6. At the commencement of the hearing before me the Applicant challenged the validity of the decision that was in fact made. That decision was made by a body describing itself as the Professional Standards & Registration Subcommittee (“the Subcommittee”) of the Migration Agents Registration Authority.
7. In an ex tempore decision I ruled that the actual decision under review was without validity as the Subcommittee had not been given a delegation in writing as required by s 319A of the Act. Nevertheless, on the authority of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 ALR 307 and Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, I ruled that the Tribunal had jurisdiction to review the impugned decision and in so doing, could exercise all the powers and discretions of the Respondent (cf Australian Securities and Investments Commission v Donald (2003) 136 FCR 7).
8. The first complaint against the Applicant arises from a judgment of Buddin J in the Supreme Court of NSW given on 3 June 2004.
9. Those proceedings were an application by the Law Society of New South Wales that the present Applicant be found guilty of a contempt of the Supreme Court.
10. The particulars of the charge were that contrary to orders made by consent by Blanch J on 5 September 1994, the Applicant, whose name had been removed from the roll of solicitors by the NSW Court of Appeal on 14 April 1982, acted or purported to act, as a solicitor.
11. The Applicant pleaded guilty to that charge and Buddin J made the following orders, namely:
1.Make an order in accordance with paragraph 1 of the applicant’s Notice of Motion.
2.Sentence the offender to a term of imprisonment of nine months.
3.Suspend the execution of the whole of that sentence.
4.Direct that the offender be released from custody immediately upon condition that he enters into a good behaviour bond for a period of nine months.
5.Make an order for costs in accordance with paragraph 4 of the applicant’s Notice of Motion.
6.Following agreement on or assessment of those costs, the offender has liberty to apply, on seven days’ notice, to the Registrar at Common Law in the event that the costs order causes him financial hardship.
12. Buddin J in his judgment refers to the circumstances of the offence. It would appear that the Applicant acted for a client in the purchase of a property and that the solicitor for the vendor assumed that the Applicant was a solicitor and the Applicant did not disabuse the vendor’s solicitor of that assumption. As Buddin J said in his judgment at paragraph 6:
“… I have no difficulty in accepting Ms Doolin’s evidence that had she known that the offender was not a solicitor, she would have approached her dealings with him quite differently. I accept that she would not have, for example, permitted him to act as her firm’s agent on settlement. Nor is it likely that she would have forwarded the signed transfer to him in the circumstances in which she did, or at least not without having first obtained instructions about the matter.”
13. The circumstances which led to the orders of Blanch J were not before me and the Applicant was vague when asked to recount the events leading to the proceedings before Blanch J in 1994. I find that a clear inference is that the Applicant did purport to act as a solicitor, hence the nature of the orders made.
14. In the course of his judgment, Buddin J referred to proceedings before Barr J in 1997 where the Law Society of New South Wales had sought orders from the Supreme Court that the Applicant was in contempt of that Court for failing to comply with the orders of Blanch J. There were in those proceedings, three transactions in which the Applicant’s conduct was alleged to have constituted breaches of the orders made by Blanch J. That Notice of Motion was dismissed by Barr J and an appeal against his decision was dismissed by the Court of Appeal on 3 May 1999 (see Law Society of New South Wales v Seymour [1999] NSWCA 117).
15. As Buddin J pointed out, the significance of those proceedings was that only just over 12 months after those proceedings were brought to finality in his favour, the Applicant embarked upon the activities which gave rise to the proceedings before him.
16. At paragraph 12 of his judgment, Buddin J referred to AG for NSW v Whiley (1993) 31 NSWLR 314 where the NSW Court of Appeal said:
“A conviction for contempt of court is a conviction for an offence which is criminal in nature… .”
His Honour went on to say at paragraph 14:
“The Migration Agents Registration Authority may, pursuant to s 303 of the Migration Act 1958 (C’th), cancel or suspend (for a period not exceeding five years) an agent’s registration if it becomes satisfied of the existence of various matters … One of the matters that is included in that list is any conviction of the person of a criminal offence. That being so, it is common ground that the offender may well have his registration cancelled or at least suspended.”
He added at paragraph 15:
“The question of what action (if any) is taken by the Authority as a consequence of these proceedings, is a matter entirely for it. As it is quite possible that the Authority will take action against the offender it is accordingly appropriate that I should take into account in his favour, the fact that a conviction for this offence may well have a significant impact upon his capacity, especially given his age, to earn an income.”
17. During the course of these proceedings the Applicant submitted that the conviction (to use Buddin J’s term in paragraph 15 of his judgment) was not of a criminal offence.
18. Whether a contempt of court can be classed as a criminal or civil contempt is a vexed area of the law. In Witham v Holloway (1995) 183 CLR 525 at 534, the majority (Brennan, Deane, Toohey and Gaudron JJ) said:
“The differences upon which the distinction between civil and criminal contempt were based were, in significant respects, illusory.”
At page 530 the majority had said of the distinction:
“In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious. As well, in the case of some orders, described in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd as involving ‘arbitrary classification’, disobedience constitutes criminal contempt. …”
Adding at page 531:
“The distinction between civil and criminal contempt is longstanding. It is a distinction that has been recognised in this court.” (authorities omitted).
19. McHugh J in Witham v Holloway (supra) drew a distinction in that case by reference to the procedure by which the case had commenced. At page 549 His Honour said:
“However, although the principal, if not sole, object of the present proceedings was to punish the appellant, the proceedings were and remain civil and not criminal proceedings for contempt. They were commenced under the Rules of the Supreme Court that govern civil proceedings. Moreover, the appellant’s appeal lay to the Court of Appeal pursuant to s 101 of the Supreme Court Act 1970 (NSW) and not to the Court of Criminal Appeal under the Criminal Appeal Act 1912 (NSW). …”
20. Previously in Australasian Meat Industry Employees’ Union & Ors v Mudginberri Pty Ltd (1986) 161 CLR 98 at 108, the majority (Gibbs CJ, Mason, Wilson and Deane JJ) said:
“A rather similar notion lies behind the cases in which disobedience to an order which is wilful or contumacious amounts to criminal contempt… The point in these cases is that wilful disobedience to a court’s order, especially if it occurs in circumstances where the conduct amounts to public defiance, involves a public injury and this calls into play a penal or disciplinary jurisdiction to deal with criminal contempt.” (Authorities omitted).
21. That criminal contempt involves a public wrong is the test stated by the authors of the chapter on contempt in Volume 5 of Halsbury’s Laws of Australia. At paragraph 105-5 they state:
105-5Traditionally, contempt of court is divided into two categories.
(1)Criminal contempt involves acts or words which interfere with or tend to interfere with the administration of justice, and which amount to a public wrong. Sanctions imposed are punitive in nature.
(2)Civil contempt, also known as contempt in procedure, involves disobedience of the judgments, orders or other processes of the court, and amounts to a private wrong. As the purpose of civil contempt is to assist enforcement for the private benefit of a party to proceedings, sanctions imposed are primarily coercive or remedial rather than punitive.
(Citations omitted)
22. However, in Microsoft Corporation & Microsoft Pty Ltd v Marks (1996) 69 FCR 117 at p136, Beaumont J with whom Lindgren and Lehane JJ agreed, drew the distinction succinctly stating:
“In my opinion, ‘substance’ or ‘object’ test is appropriate in our context also. That is to say, if, in substance, the proceedings at first instance were criminal in the sense that their object was to punish then, as BLF decided, no appeal could lie. On the other hand, if the substance and object of the proceedings were remedial, then an appeal was competent as in any case of an alleged civil contempt.”
23. There is no doubt that the proceedings before Buddin J were brought with the purpose of punishing the present Applicant. As His Honour pointed out, it was common ground that the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied and the penalty imposed was one of imprisonment for a fixed term (as opposed to an indefinite term until the contempt had been purged).
24. Therefore whilst not free from doubt, I accept for current purposes that the contempt proceedings before Buddin J were criminal.
25. The result of that finding has application to both subparagraphs 5.2 and 5.4 of the Respondent’s Statement of Facts and Contentions.
26. I accept that the Applicant may well have had a belief that the contempt proceedings were not criminal however I do not accept that this belief should have resulted in his failing to notify the Respondent of either the fact that the proceedings were on foot or of the conviction and sentence.
27. As pointed out by Fitzgerald JA who gave the judgment of the Court in Law Society of New South Wales v Seymour (supra), the present Applicant objected to the competency of the Law Society to appeal based on the premise that the proceedings for contempt, in which the Law Society had sought to have him found guilty and punished was a criminal proceeding. It was further argued that he had been acquitted of the charge of contempt and that no appeal lay from such a verdict (see paragraph 5 of the judgment).
28. Unfortunately for present purposes, the Court of Appeal found it unnecessary to rule upon that submission.
29. Whatever the Applicant’s real belief may have been, if he was to be regarded as a person in whom the Respondent could place reliance, it was incumbent upon him to make full disclosure of the proceedings against him and of the findings and orders of Buddin J.
30. One of the Applicant’s character witnesses referred to his taking a technical approach to the law. Although it may be regarded as consistent with that approach, to argue before the Court of Appeal that he had been convicted of a criminal contempt and then to argue before me that the contempt was civil and therefore he was under no obligation to notify the Respondent pursuant to ss 290(2)(c) and 312(1)(c) of the Act, I totally reject that approach.
31. I find that such a narrow and opportunistic approach regarding his responsibilities to the Respondent indicates a lack of candour and openness which negates a finding that that Applicant can be regarded as a person of integrity and fit and proper to be licensed as a migration agent.
32. Subparagraph 5.3 of the Respondent’s Statement of Facts and Contentions, complains that the Applicant when first applying to be licensed as a migration agent, did not disclose that in 1990 he had been convicted of an offence being what is known as high range PCA.
33. I do not regard the offence itself as having any materiality whatsoever. However, it is no answer to the accusation of having failed to disclose it in his initial application for registration to say that he consented to the Respondent undertaking a criminal records check and that that check would have revealed the offence. That, to my mind, is not the disclosure required by ss 290(2) of the Act.
34. There is no question that when in 1993, the Applicant first applied to be registered the PCA conviction was not spent (see the Criminal Records Act 1991 (NSW) ss 7 and 9).
35. The Applicant adduced a large number of referees attesting to his fitness to practise as a migration agent. The approach I have taken with regard to their testimony is that respecting character evidence adopted by the Privy Council in Malindi v R [1967] AC 439 at 451 quoting Viscount Simon LJ in Stirland v Director of Public Prosecutions [1944] AC 315 at 324-325, namely:
“There is perhaps some vagueness in the use of the term ‘good character’ in this connexion. Does it refer to the good reputation which a man may bear in his own circle, or does it refer to the man’s real disposition as distinct from what his friends and neighbours may think of him? In Reg v Rowton on a re-hearing before the full court, it was held by the majority that evidence for or against a prisoner’s good character must be confined to the prisoner’s general reputation, but Erle C.J. and Willes J. thought that the meaning of the phrase extended to include actual moral disposition as known to an individual witness, though no evidence could be given of concrete examples of conduct. In the later case of Rex v Dunkley, the question was further discussed in the light of the language of the section, but not explicitly decided. I am disposed to think that in paragraph (f) (where the word ‘character’ occurs four times) both conceptions are combined.” (citations omitted).
36. Approached from this viewpoint and disregarding comments on the propriety or otherwise of previous proceedings involving the Applicant, he is a person whom his contemporaries regard as having real moral worth.
37. Notwithstanding his referees views as to his character, and I note that at least one was most discomforted when the full import of Buddin J’s decision was made known to him, the Applicant cannot escape his history. He is a person who in 1982 was struck off as a solicitor. In 1994, for reasons not explained to me, he gave undertakings to the Supreme Court of NSW that he would not in future act or purport to act as a solicitor. In 1999 he was convicted and sentenced to 9 months imprisonment, suspended upon entering into a good behaviour bond, for purporting to act as a solicitor in breach of his undertakings.
38. As far as I am concerned, those facts alone would be sufficient to render the Applicant not a fit and proper person whether the contempt was criminal or civil. Added to those facts are the other facts that the Applicant committed his contempt not only after giving undertakings but within 12 months of proceedings regarding other alleged similar breaches of his undertaking, albeit those proceedings were resolved in his favour. Then, although having previously argued that the similar contempt proceedings were criminal, he declined to notify the Respondent of his conviction for contempt on 3 June 2004. Previously, he had neglected to inform the Respondent himself of a conviction in 1990 for a driving offence.
39. Taken all together, I find that the Applicant is not a person of integrity nor is he a fit and proper person for the purposes of s 290 of the Act.
40. As I have previously found that the decision under review is a nullity, the order of the Tribunal will be in a similar form to that made by Brennan J (as he then was) in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, namely:
The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that Michael Seymour is not a fit and proper person to be reregistered as a migration agent.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen
Signed: (E.Pope) .....................................................................................
Associate
Date of Hearing 19, 20 and 21 December 2005
Date of Decision 27 January 2006
Counsel for the Applicant Mr T Hurley
Counsel for the Respondent Mr G T Johnson
Solicitor for the Respondent Phillips Fox
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